Campbell v. Muncie

In an action to recover damages for alienation of affections, order granting defendant Curtis H. Muncie’s motion under rule 107, subdivision 7, Rules of Civil Practice, to dismiss tho complaint because the cause of action had been released, and the judgment entered pursuant to said order, reversed on the law and the facts, with ten dollars costs and disbursements; and it is directed that the question of fact as to the validity and applicability of the release be tried by a jury and the findings thereof reported to the Special Term for its action on the motion as provided in rule 108 of the Rules of Civil Practice. (Perloff v. Kelmenson, 226 App. Div. 696; Mohamed v. Unifruitco Steamship Co., Ltd., 223 id. 791; Horlick v. Horlick, 243 id. 559.) The affidavits raise an issue of fact as to the applicability of the general release to the cause of action set out in the complaint, as well as the validity thereof in its relation to that cause of action. Lazansky, P. J., Carswell, Tompkins, Davis and Johnston, JJ., concur.